The President having referred to the Supreme Court, under Art. 26 of the
Constitution, a Bill entitled "An Act to repeal Part VI of the Offences
Against the State Act 1939, and to make other provisions in relation to
the detention of certain persons," for a decision on the question whether
the said Bill was repugnant to the Constitution or to any provision thereof,

The Court (by a majority) was of opinion:—

1. That s. 4 of the Bill, which provides, inter alia, that "whenever a Minister
of State is of opinion that any particular person in engaged in activities which,
in his opinion, are prejudicial to the preservation of public peace and order
or to the security of the State, such Minister may by warrant under his hand
and sealed with his official seal order the arrest and detention of such person
under this section," does not confer upon the Minister power to administer
justice, and is not repugnant to Art. 34 of the Constitution, which provides
that justice shall be administered in public Courts.

2. That the detention of persons provided for in the Bill is not in the
nature of punishment but of preventive justice, being a precautionary
measure taken for the purpose of preserving the public peace and order and
the security of the state, and did not contravene the provision of Art. 38
of the Constitution providing that no person be tried on any criminal charge
save in due course of law.

3. That the provisions of the Bill are not repugnant to the provisions of
Art. 40, clause 3, of the Constitution by which the State guarantees by its
laws to respect, and, as far as practicable, by its laws to defend and
vindicate the personal rights of the citizen.

4. That the Bill does not take away the right to habeas corpus.

5. That the provisions of s. 5 of the Bill, as to the interrogation and
searching of persons, and of s. 7, authorising the making of regulations as
to the place and mode of detention of persons arrested under the Bill, and
other matters incidental thereto, and as to the punishment of persons so
detained who contravene the regulations, were made necessary by reason of
the provisions of s. 4, and that there is nothing in these sections to suggest
that any regulation made thereunder would contravene any Article of the
Constitution.

The Court accordingly advised the President that the said Bill was not
repugnant to the Constitution or to any provision thereof.

Reference of a Bill, passed by both Houses of the
Oireachtas, to the Supreme Court for a decision on the
question as to whether the Bill or any specified provision
thereof was repugnant to the Constitution.

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

471

1 I.R.

Supreme Court

Constitution, I, Douglas Hyde, President of Ireland, after
consultation with the Council of State,. do hereby refer the
annexed Bill: Offences Against the State (Amendment)
Bill , 1940, to the Supreme Court for a decision on the
question as to whether the said Bill is repugnant to the
Constitution or to any provision thereof.

Given under my hand and seal this 8th day of January,
1940."

The terms of reference were signed by the President.

The Court, in accordance with Art. 26, clause 2, par. 1,
of the Constitution, heard arguments on behalf of the
Attorney-General and by counsel assigned by the Court.

There are twelve ample safeguards against the misuse
by the Executive of the powers given to them by Part II
of this Bill, which provides for special powers of arrest and
detention, viz., 1, This Part can only come into operation
by a proclamation of the Government duly made; 2, The
Government may publish a further proclamation revoking
the previous one, and this Part thereupon ceases to be in
force; 3, The Dail may, by resolution, revoke the proclamation;
4, Any Minister may order the release of a
person interned; 5, Every person arrested must be furnished
with a copy of the warrant under which he is arrested and
of the provisions of s. 8 of the Bill; 6, There is an immediate
appeal to a Commission appointed under the Bill; 7, In
the personnel of the Commission there is ample safeguard
that it will do its duty—the Commission is to consist of
three persons of whom one is to be a barrister or solicitor
of not less than seven years standing, or be, or have been,
a Judge of the Supreme Court, the High Court, or the Circuit
Court, or a Justice of the District Court; 8, It is the duty of
the Commission to investigate and make a report; 9, The
Commission has the right to call on the Minister for Justice
for such information and documents as it may require;
10, If the Commission report to the Government that there
is no reasonable ground for his continued detention, the
prisoner must be released with all convenient speed;
11, Returns showing the number of persons interned under
this Part of the Act must be laid before both Houses of the
Oireachtas every six months; 12, The Bill preserves the
right to habeas corpus. Detention without trial is not contrary
to the Constitution, and is, in fact, provided for by
numerous laws. For example, there are certain common
law powers of arrest and detention given to police and to

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

472

1 I.R.

Supreme Court

civilians. [He referred to Sandes' Criminal Practice, Procedure
and Evidence in Eire , 2nd edn., p. 32.] The Income Tax
Act, 1918, s. 165, authorises the detention in certain cases
of persons failing to pay income tax. Other examples are
s. 58 of the Children's Act, 1908, and s. 17 of the School
Attendance Act, 1926. The right to detain enemy subjects
and prisoners of war was affirmed in R. v. Vine Street Police
Station Superintendent, Ex parte Liebmann (1). Analogous
to the powers contained in the present Bill are those contained
in the Defence of the Realm (Consolidation) Regulations,
1914, made under the Defence of the Realm Consolidation
Act, 1914, providing for the detention of naturalized British
subjects of German birth, which were held to be valid in The King (Zadig) v. Halliday (2). It was there pointed out
that such detention was in the nature of preventive, and
not punitive, justice. "Preventive justice, as it is styled,
which consists in restraining a man from committing a crime
he may commit but has not yet committed, or doing some
act injurious to members of the community which he may
do but has not yet done is no new thing in the laws of
England": per Lord Atkinson, at p. 273. [He referred
also to The King (O'Connell) v. Military Governor of Hare
Park Camp (3); The State (Ryan) v. Lennon (4).

The cases cited on behalf of the Attorney-General on the
question of presumption of constitutionality are all concerned
with statutes. There is no presumption one way or
another in the case of this Bill. The terms of reference,
following Art. 26, clause 1, par. 1, are to consider whether"the Bill is repugnant to the Constitution or to any provision
thereof." A provision may be repugnant to the
whole spirit of the Constitution although it might be difficult
to point to any Article to which it was plainly contrary
It is, however, only necessary to satisfy the Court that there
is some repugnancy in the Bill to the Constitution.

(1) [1916] 1 K. B. 268.

(2) [1917] A. C. 260.

(3) [1924] 2 I. R. 104; on appeal,
[1935] I. R. 247.

(4) [1935] I. R. 170.

(5) [1939] I. R. 413.

(6) 11 Commonwealth L. R. 689.

(7) 28 Commonwealth L. R. 209.

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

473

1 I.R.

Supreme Court

This Bill is not intended to be a temporary enactment,
nor does it purport to come within the terms of Art. 28 as
amended by the First Amendment of the Constitution Act,
1939 (1) as an Act to secure public safety and the preservation
of the State in time of war or armed rebellion. Apart
from the exception contained in Art. 28 there is an express
prohibition against enacting any law which is in any respect
repugnant to the Constitution: Art. 15, clause 4. [They
referred in detail to the provisions of the Bill.]

The Constitution provides by Art. 38 that no person may
be tried on a criminal charge save in accordance with law,
this being expressed to mean trial by a Judge and jury
except in the case of the exceptions set out expressly in that
Article: Art. 38, clauses 2, 3, 4. The Constitution clearly
does not contemplate a person being detained without trial
on a criminal matter. This Bill is of the nature of a criminal
jurisdiction. Art. 34 provides that justice shall be administered
in public Courts. The protection of the personal
and fundamental rights of individuals as between themselves
and in relation to the State involves the idea of
justice. It involves also that any person thought guilty of
an infringement of the law should be charged and tried by
the public Courts. These provisions would be a mockery
if the Executive could refuse to charge and try such persons,
and could arbitrarily imprison them instead.

With two exceptions, the examples of detention without
trial given on behalf of the Attorney-General fall within
the terms of Art. 40, clause 1, being persons such as
lunatics, children, etc., who are being protected and cared
for by the State (2).

The first example given of detention without trial not
falling within Art. 40, clause 1, relates to the powers
given under the Defence of the Realm Consolidation Act,
1914, and the decision in The King (Zadig) v. Halliday (3),was relied on. But that decision is not relevant to our
Constitution. That decision was solely concerned with the
question whether the Regulations made were authorised by
the Act. The constitutionality of the Act could not be
questioned, the dominant feature of English constitutional
law being the sovereignty of Parliament. Under our

(1) This Act is not numbered like other Acts. It is an amendment of the
Constitution made in pursuance of Art. 51.

(2) "Article 40.

1. All citizens shall, as human persons, be held equal before the law.

This shall not be hold to mean that the State shall not in its enactments
have due regard to differences of capacity, physical and moral, and of social
function."

(3) [1917] A. C. 260.

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

474

1 I.R.

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Constitution, which is a rigid Constitution, having an
Oireachtas with limited powers of legislation, such an Act
would not be valid, save in a time of war or armed
rebellion, as provided by Art. 28, clause 3, par. 3.

The second example of detention without trial, not
falling within Art. 40, clause 1, relates to the power of
detention conferred by the Income Tax Act, 1918, but
it may be doubted whether this power of detention is valid
under our Constitution. In any event, the person liable
to detention in that case has had an opportunity of being
heard and of defending himself, by means of the provisions
for appeal against assessment. Preventive justice is of the
nature of justice, and Art. 34 provides that "justice shall be
administered in public Courts established by law by Judges
appointed in the manner provided by this Constitution." The
maintenance of public peace is inherently a function of the
Courts, exercised by means of its powers of taking sureties
and directing persons to enter into recognizances to be of
good behaviour. But in all such cases there must have
been a judicial determination that a state of facts existed
which justified the prisoner's imprisonment and punishment: The King (Boylan) v. Justices of Londonderry (1), per Palles
C.B. at p. 380. The necessity of arriving at any judicial
determination is removed by this Bill. Art. 40, clause 4,
par. 1 provides that no person may be deprived of his liberty"save in accordance with law." The expression, "in
accordance with law," means in accordance with law which
is not repugnant to the Constitution. Can it be suggested
that if this Bill be enacted, detention under it will be "in
accordance with law?" [They referred to Story on the
Constitution of the United States of America, Vol. II,
5th edn., ss. 1338, 1778-9, 1858, 1860-66, 1938, 1941, on
the subjects of habeas corpus, trial by jury, and the meaning
of the phrase, "due process of law"; and to Marbury v.Maddison (2).] Art. 38 provides for the trial of persons
on a criminal charge. This Bill proposes to punish without
trial for breach of regulations made under it, and s. 5 of the
Bill creates four specific offences. It cannot be held that
because the word "contravention" is used in place of"offence" that the provisions of Art. 38 can be nullified.

Martin Maguire K.C.
replied.

The remaining arguments of counsel are referred to in
the course of the opinion of the Court.

Cur. adv. vult.

(1) [1912] 2 I. R. 374.

(2) 1 Cranch 137.

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

475

1 I.R.

Supreme Court

Sullivan C.J.
:—

9. Feb.

In pursuance of the provisions of Art. 26 of the Constitution,
the President of Ireland, on the 8th January, 1940, after
consultation with the Council of State, referred to this
Court a Bill, entitled "Offences Against the State (Amendment)
Bill, 1940," for a decision on the question whether
the said Bill is repugnant to the Constitution or to any
provision thereof.

The said Article admittedly refers to a Bill such as this,
which had been duly passed by both Houses of the
Oireachtas. Under the Article it is provided that the
Court, consisting of not less than five Judges, shall consider
every question referred to it by the President and, having
heard arguments by or on behalf of the Attorney-General
and by counsel assigned by the Court, shall pronounce its
decision in open Court as soon as may be, and in any case
not later than sixty days after the date of reference.

The Article further provides that the decision of the
majority of the Judges of this Court shall, for the purposes
of this Article, be the decision of the Court (clause 2, par. 2).

It is further provided that, in every case in which this
Court decides that any provision of a Bill, so referred to the
Court, is repugnant to the Constitution or to any provision
thereof, the President shall decline to sign such Bill, and
that, in every other case, the President shall sign the Bill
as soon as may be after the date on which the decision of this
Court shall have been pronounced.

In accordance with the provisions of the Article the
Court assigned counsel and, subsequently, the Court heard
arguments by counsel on behalf of the Attorney-General
and by counsel so assigned by the Court, and at the conclusion
of the said arguments reserved its decision.

The decision now announced is the decision of the majority
of the Judges and is, within the meaning of clause 2, par. 2
of the said Article, the decision of the Court.

The long title of the Bill, so referred to this Court is "An
Act to repeal Part VI of the Offences against the State
Act, 1939, and to make other provisions in relation to the
detention of certain persons."

Sect. 2, which is contained in Part I of the Act, repeals
Part VI of the Offences Against the State Act, 1939. The
Part of the Act of 1939 so repealed is substantially to the
same effect as Part II of the Bill now before this Court.

Part II of the Bill consists of seven sections.

Sect. 3 provides that Part II of the Act is to come into
force when and so often as the Government makes and
publishes a Proclamation declaring that the powers conferred

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

476

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Sullivan C.J.

Supreme Court

by the said Part of the Act are necessary to secure the
preservation of public peace and order, and that, if the
Government makes and publishes a Proclamation declaring
that the said Part of the Act shall cease to be in force, same
shall forthwith cease to be in force. It further provides
that it shall be lawful for Dail Eireann, at any time while
the said Part of the Act is in force, to pass a resolution
annulling such first-mentioned Proclamation and thereupon
such Proclamation shall be annulled and the said Part of the
Act shall cease to be in force, but without prejudice to the
validity of anything done after the making of the Proclamation
and before the passing of the resolution.

Sect. 4 provides as follows:—

"4—(1) Whenever a Minister of State is of opinion that
any particular person is engaged in activities which, in his
opinion, are prejudicial to the preservation of public peace
and order or to the security of the State, such Minister may
by warrant under his hand and sealed with his official seal
order the arrest and detention of such person under this
section.

(2) Any member of the Garda Siochana may arrest without
warrant any person in respect of whom a warrant has been
issued by a Minister of State under the foregoing sub-section
of this section.

(3) Every person arrested under the next preceding
sub-section of this section shall be detained in a prison or
other place prescribed in that behalf by regulations made
under this Part of this Act until this Part of this Act ceases
to be in force or until he is released under the subsequent
provisions of this Part of this Act, whichever first happens.

(4) Whenever a person is detained under this section,
there shall be furnished to such person, as soon as may be
after he arrives at a prison or other place of detention prescribed
in that behalf by regulations made under this Part
of this Act, a copy of the warrant issued under this section
in relation to such person and of the provisions of section 8
of this Act.

(5) Every warrant issued by a Minister of State under
this section shall be in the form set out in the Schedule to
this Act or in a form to the like effect."

Sect. 5 confers on any member of the Garda Siochana
power, in respect of any person arrested and detained under
this Part of the Act:—(a) to demand his name and address,
(b) to search him or cause him to be searched, (c) to photograph
him or cause him to be photographed, and (d) to
take or cause to be taken his fingerprints. It also provides
that any person who obstructs or impedes a member of the

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

477

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Sullivan C.J.

Supreme Court

Garda Siochana in the exercise of the said powers, or who
refuses to give to a member of the Garda Siochana his correct
name and address, shall be guilty of a contravention of the
regulations to be made under this Part of the Act and shall
be dealt with accordingly.

Sect. 6 provides that a Minister of State may, by writing
under his hand, order the release of any person who is being
detained and such person shall forthwith be released.

Sect. 7 empowers a Minister of State to make regulations
for all or any of the following purposes, that is to say:—

(a) Prescribing the prisons, internment camps, and other
places in which persons may be detained under this Part of
this Act;

(b) providing for the efficient management, sanitation,
control, and guarding of such prisons, internment camps,
and other places;

(c) providing for the enforcement and preservation of
discipline amongst the persons detained in any such prison,
internment camp, or other place as aforesaid;

(d) providing for the punishment of persons so detained
who contravene the regulations;

(e) prescribing or providing for any other matter or thing
incidental or ancillary to the efficient detention of persons
detained under this Part of this Act.

Sub-s. 2 of the said section provides that:—

"Every regulation made under this section shall be laid
before each House of the Oireachtas as soon as may be after
it is made, and if a resolution annulling such regulation is
passed by either House of the Oireachtas within the next
subsequent twenty-one days on which such House has sat
after such regulation is laid before it, such regulation shall
be annulled accordingly, but without prejudice to the
validity of any thing previously done under such regulation."

Sect. 8 provides for the setting-up of a Commission to
which any person detained under this Part of the Act may
apply in writing to consider the continuation of his detention,
and requires the Minister for Justice to furnish to the Commission
such relevant information and documents, in the
possession or procurement of the Government or of any
Minister of State, as shall be called for by the Commission,
and further provides that, if the Commission reports that
no reasonable grounds exist for the continued detention of
such person, he shall, with all convenient speed, be released.

Sect. 9 provides that the Government shall, once at least
in every six months, furnish to each House of the Oireachtas
certain particulars therein specified with reference to persons
detained.

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

478

1 I.R.

Sullivan C.J.

Supreme Court

Counsel, so assigned by the Court, contended that the
Bill was repugnant to the Constitution and, in particular,
they relied upon the Preamble and on Article 34, clause 1,
and Articles 38 and 40.

We propose to deal specifically with the aforesaid Articles,
but in arriving at our conclusion we have had regard not
only to those Articles but also to all such other Articles
as seemed to us material to the question which we have to
determine.

Before dealing, however, with the said Articles, we desire
to point out that several Acts authorising the detention of
persons had been passed by the Oireachtas of the Irish
Free State prior to the enactment of the Constitution which
we are now considering. The existence and effect of these
Acts must have been within the knowledge of the framers
of the Constitution and, nevertheless, there is no express
prohibition in the Constitution against such legislation.
This is a matter to which we are bound to attach considerable
weight in view of the fact that many Articles of the Constitution
prohibit the Oireachtas, in plain and unambiguous
language, from passing certain laws therein specified.

Where any particular law is not expressly prohibited and
it is sought to establish that it is repugnant to the Constitution
by reason of some implied prohibition or repugnancy,
we are of opinion, as a matter of construction, that such
repugnancy must be clearly established.

The material portion of the Preamble is that which declares
that, in enacting the Constitution, the People of Ireland
are

"Seeking to promote the common good, with due
observance of prudence, justice and charity, so that the
dignity and freedom of the individual may be assured, true
social order attained, the unity of our country restored, and
concord established with other nations."

In dealing with the Preamble counsel laid great stress on
the words "dignity and freedom of the individual" and
focussed their attention upon those words exclusively.
This does not seem to us to be the correct method of arriving
at the true meaning and effect of the Preamble. The main
object aimed at is the promotion of the common good, which,
it is contemplated, will assure the dignity and freedom of
the individual, the attainment of social order, the restoration
of the unity of our country and the establishment of concord
with other nations. Apart from the grammatical construction
of the words of the Preamble, it seems to us
difficult to understand how the dignity and freedom of the
individual member of a State can be attained unless social

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

479

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Sullivan C.J.

Supreme Court

order is maintained in that State. There is nothing in this
clause of the Preamble which could be invoked to necessitate
the sacrifice of the common good in the interests of the
freedom of the individual.

Article 34 deals with the establishment of Courts and the
administration of justice therein, and the particular Clause
on which reliance was placed, is Clause 1, which provides
that justice shall be administered in public Courts established
by law by Judges appointed in the manner provided by the
Constitution. In order to rely upon this Article it would be
necessary to establish that the Minister, in exercising the
powers conferred upon him by the Bill, is administering
justice within the meaning of the Article. This proposition
seems to us to be wholly unsustainable.

Article 38 deals with the trial of offences and provides, in
clause 1, that no person shall be tried on any criminal charge
save in due course of law. The remaining clauses of the
Article prescribe the methods in which criminal charges
may be tried and specify various Courts for this purpose.
The argument necessarily proceeds upon the basis that the
Minister, in performing his functions under the Bill, is engaged
in the trial of a criminal charge and that the detention
contemplated by the Bill is punishment in respect of a
criminal offence.

In the opinion of this Court neither s. 4 nor s. 5 of
the Bill creates or purports to create a criminal offence.
The only essential preliminary to the exercise by a Minister
of the powers contained in s. 4 is that he should have
formed opinions on the matters specifically mentioned in
the section. The validity of such opinions is not a matter
that could be questioned in any Court. Having formed
such opinions, the Minister is entitled to make an order
for detention; but this Court is of opinion that the detention
is not in the nature of punishment, but is a precautionary
measure taken for the purpose of preserving the public
peace and order and the security of the State. This distinction
has been recognised in several cases.

In the case of The King (Zadig) v. Halliday (1), a question
arose as to the power of the Home Secretary in England to
make an order for detention under the Defence of the Realm
(Consolidation) Regulations, 1914, made under s. 1, sub-s. 1,
of the Defence of the Realm Consolidation Act, 1914. In
the course of his speech in that case Lord Finlay L.C. says
at p. 265:—

"On the face of it the statute authorises in this sub-section

(1) [1917] A. C. 260.

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

480

1 I.R.

Sullivan C.J.

Supreme Court

provisions of two kinds—for prevention and for punishment.
Any preventive measures, even if they involve some
restraint or hardship upon individuals, do not partake
in any way of the nature of punishment, but are taken by
way of precaution to prevent mischief to the State."

In a later passage he says, at p. 269:—

"One of the most obvious means of taking precautions
against dangers such as are enumerated is to impose some
restriction on the freedom of movement of persons whom
there may be any reason to suspect of being disposed to
help the enemy. It is to this that regulation 14B is directed.
The measure is not punitive but precautionary. It was
strongly urged that no such restraint should be imposed
except as the result of a judicial inquiry, and, indeed, counsel
for the appellant went so far as to contend that no regulation
could be made forbidding access to the seashore by suspected
persons. It seems obvious that no tribunal for investigating
the question whether circumstances of suspicion exist
warranting some restraint can be imagined less appropriate
than a Court of law. No crime is charged. The question
is whether there is ground for suspicion that a particular
person may be disposed to help the enemy. The duty of
deciding this question is by the order thrown upon the
Secretary of State, and an advisory Committee, presided
over by a Judge of the High Court, is provided to bring
before him any grounds for thinking that the order may
properly be revoked or varied."

Lord Atkinson, in the course of his speech in the same
case, says at p. 273:—

"Preventive justice, as it is styled, which consists in
restraining a man from committing a crime he may commit
but has not yet committed, or doing some act injurious
to members of the community which he may do but has not
yet done, is no new thing in the laws of England."

Again:—

"One of the most effective ways of preventing a man
from communicating with the enemy or doing things such
as are mentioned in s. 1, sub-s. 1 (a) and (c), of the statute
is to imprison or intern him. In that as in almost every
case where preventive justice is put in force some suffering
and inconvenience may be caused to the suspected person.
That is inevitable. But the suffering is, under this statute,
inflicted for something much more important than his
liberty or convenience, namely, for securing the public
safety and defence of the realm."

The principle underlying the decision in that case was

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

481

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Sullivan C.J.

Supreme Court

acted upon and applied in this country in the case of The
King (O'Connell) v. Military Governor of Hare Park Camp (1).In that case the applicant was detained in custody under
an order of an Executive Minister made under s. 4 of the
Public Safety (Powers of Arrest and Detention) Temporary
Act, 1924, which authorised such Minister to make such an
order where he was of opinion that the public safety would
be endangered by such person being set at liberty. It was
contended that the section was repugnant to the Constitution
of the Irish Free State, which, in our opinion, was, in this
respect, substantially to the same effect as the Constitution
of Ireland. That contention was rejected and an application
for habeas corpus was refused.

Article 40 deals with personal rights. Clause 3 thereof
provides that the State guarantees by its laws to respect,
and, as far as practicable, by its laws to defend and vindicate
the personal rights of the citizen, and to protect from unjust
attack and, in case of injustice done, to vindicate, the
life, person, good name, and property rights of every
citizen.

It is alleged that the provisions of the Bill are repugnant
to the guarantee contained in this clause. It seems to us
impossible to accede to this argument. The guarantee in
the clause is not in respect of any particular citizen, or class
of citizens, but extends to all the citizens of the State, and
the duty of determining the extent to which the rights of any
particular citizen, or class of citizens, can properly be
harmonised with the rights of the citizens as a whole seems
to us to be a matter which is peculiarly within the province
of the Oireachtas, and any attempt by this Court to control
the Oireachtas in the exercise of this function, would, in
our opinion, be a usurpation of its authority.

The People, by the Constitution, have provided for the
setting-up of three great Departments of State—the
Oireachtas, the Executive, and the Judiciary—and it is
essential for the harmonious working of the machinery of
State that each Department should confine itself to its own
constitutional functions. If the Oireachtas enacts a law
within the scope of its legal and constitutional powers,
it is for the Courts to construe and apply such law. Any
criticism by the Courts of the manner in which the Oireachtas
exercises the discretion and powers vested in it would be as
much open to objection as would any suggestion, in either
House of the Oireachtas, that a decision of a Court, within
the scope of its authority, was not in accordance with
law.

(1) [1924] 2 I. R. 104; on appeal, [1935] I. R. 247.

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

482

1 I.R.

Sullivan C.J.

Supreme Court

Clause 4 of the said Article provides that no citizen shall
be deprived of his liberty save in accordance with law, and
makes provision for the release of any person who is being
detained otherwise than in accordance with law.

The phrase "in accordance with law" is used in several
Articles of the Constitution, and we are of opinion that it
means in accordance with the law as it exists at the time
when the particular Article is invoked and sought to be
applied. In this Article, it means the law as it exists at the
time when the legality of the-detention arises for determination.
A person in custody is detained in accordance with
law if he is detained in accordance with the provisions of a
statute duly passed by the Oireachtas; subject always to
the qualification that such provisions are not repugnant
to the Constitution or to any provision thereof.

Accordingly, in our opinion, this Article cannot be relied
upon for the purpose of establishing the proposition that the
Bill is repugnant to the Constitution—such repugnancy must
be established by reference to some other provision of the
Constitution.

It was contended that the effect of the Bill is to take
away the right to habeas corpus. There is no foundation
for this contention. Notwithstanding the provisions of the
Bill, a person who is detained is entitled under Article 40,
clause 4, par. 2, to have the legality of his detention enquired
into and to obtain an order for his release, unless the Court
or Judge, enquiring into the matter, is satisfied that all
the provisions of the Bill have been complied with and that
the detention is legal.

No doubt the Bill, when enacted, will have the effect of
altering the law and, to that extent, will justify a detention
which might otherwise be unlawful. This, however, cannot
rightly be described as taking away the right to habeas
corpus.

The arguments based upon ss. 5 and 7 of the Bill can
be disposed of very shortly. If, as this Court holds, the
arrest and detention contemplated by s. 4 are lawful, it is
obviously necessary that provision should be made as to
the place and mode of detention and other matters incidental
thereto. Sects. 5 and 7 seem to us to be framed with
this object in view. The purposes for which regulations
may be made are set out in s. 7 and, in framing the regulations,
the Minister is bound by the terms of the section. There
is nothing in the section to suggest that any regulation
made thereunder could contravene any Article of the
Constitution. It is not for us to assume that the Minister
will exceed the powers conferred upon him by the section

[1940]

In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.

483

1 I.R.

Sullivan C.J.

Supreme Court

and, should he do so, it seems to us that the regulations
would, to that extent, be ultra vires and invalid.

It was contended before us that the Bill is unnecessary
and oppressive. This is not a matter for our consideration
and we express no opinion upon it. The only question
before us is whether it is within the power of the Oireachtas,
consistently with the Constitution, to enact such legislation.
In the opinion of this Court it is, and we shall advise the
President accordingly.